No. 10-1491

In the Supreme Court of the United StatesESTHER KIOBEL, et al.,

Petitioners,

—v.—

ROYAL DUTCH PETROLEUM CO., et al.,

Respondents._________________________________________

On Writ of Certiorari to the United States Court ofAppeals for the Second Circuit

________________________________________

BRIEF OF EARTHRIGHTS INTERNATIONAL ASAMICUS CURIAE IN SUPPORT OF PETITIONERS

_________________________________________

RICHARD L. HERZCounsel of RecordMARCO B. SIMONS

JONATHAN G. KAUFMANEARTHRIGHTS INTERNATIONAL

1612 K St NW, Ste. 401Washington, DC 20006

(202) 466-5188rick@earthrights.org

Counsel for amicus curiae

iTABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

STATEMENTS PURSUANT TO SUPREME COURT RULE 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . 1STATEMENT OF THE ISSUE ADDRESSED BY AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . 2INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. Federal common law governs the issue of whether corporations can be sued under the ATS . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The text of the ATS, Sosa, the ordinary role of federal common law and the purpose of the ATS all direct the court to federal common law . . . . . . . . . . . . . . . 6

1. The text of the ATS requires that federal common law governs . . . . . . . . . . . . . . . . 6

ii2. Sosa directs courts to apply

federal common law . . . . . . . . . 8

3. Courts generally look to federal liability rules toeffectuate federal causes of action . . . . . . . . . . . . . . . . . . 13

4. Congress’ original purpose of providing a federal forumsuggests that who can be sued must be determined by common law rules . . . . . . . . 16

B. International law itself requires the conclusion that federal common law applies . . . . . . . . . . . . . . 17

C. Courts commonly apply federal common law in ATS cases . . . . . . . . . 22

II. Federal common law provides for corporate liability . . . . . . . . . . . . . . . . . . . . . 24

A. The applicable liability rulesincorporate established federal or traditional common law rules and international law . . . . . . . . . . . . 25

B. Under federal common law,corporations are subject to the same liability rules as natural persons . . . . . . . . . . . . . . . 27

iiiC. Corporate liability best

effectuates the Framers’ purposes in passing the ATS . . . . . . . 30

III. The text of the ATS and the common law nature of the claim demonstrate that the law applies to conduct occurring abroad . . . . . . . . . . . . . . . . . . . . . . 33

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

ivTABLE OF AUTHORITIES

Federal Cases

Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996) . . . . . 22 n.15, 27

Agency Holding Corp. v. Malley-Duff &Associates, Inc., 483 U.S. 143 (1987) . . 27 n.16

Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) . . . 6

Baltimore & P.R. Co. v. Fifth Baptist Church, 108 U.S. 317 (1883) . . . . . . . . . . . . . . . . . . . 28

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) . . . . . . . . . . . . . . . . . . . 25

Bowoto v. Chevron Corp., No. C 99-02506, 2006 U.S. Dist. LEXIS 63209 (N.D. Cal. Aug. 22, 2006) . . . . . . . . . . . . 12 n.5

Breedlove v. Nicolet, 32 U.S. 413 (1833) . . . . . . . . . . . . . . . . . . . 35

Burlington Indus., Inc., v. Ellerth, 524 U.S. 742 (1998) . . . . . . . . . . . . . . . . 13, 25

Burnham v. Superior Court, 495 U.S. 604 (1990) . . . . . . . . . . . . . . 36 n.20

vCabello v. Fernandez-Larios,

402 F.3d 1148 (11th Cir. 2005) . . . . . . 22 n.15

Community Elec. Serv. of Los Angeles, Inc. v. Nat’l Elec. Contractors Ass’n, Inc., 869 F.2d 1235 (9th Cir. 1989). . . . . . . . 15 n.9

Connecticut v. Massachusetts, 282 U.S. 660 (1931) . . . . . . . . . . . . . . . . . . . 26

County of Oneida, N.Y. v. Oneida Indian Nation of New York State, 470 U.S. 226 (1985) . . . . . . . . . . . . . . . . 14 n.7

Daniels v. Tearney, 102 U.S. 415 (1880) . . . . . . . . . . . . . . 27 n.16

Dennick v. Central Ry. Co., 103 U.S. 11 (1880) . . . . . . . . . . . . . . . . . . . . 35

Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011) . . . . . . . . passim

Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115 (D.D.C. 2003) . . . 22 n.15

Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078 (S.D. Fla. 1997) . . . 22 n.15

Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) . . . . . . . 35, 36, 37

viFilártiga v. Peña-Irala,

577 F. Supp. 860 (S.D.N.Y. 1984) . . . . . . . . 30

First Nat’l City Bank v. Banco Para El Comercio Exterior De Cuba, 462 U.S. 611 (1983) . . . . . . . . . . . . . . . . . . . 29

Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011) . . . . . . . passim

Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003) . . . . . . . . . . . . . 29

Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983) . . . . . . . . . . . 23

Hamdan v. Rumsfeld, 548 U.S. 2749 (2006) . . . . . . . . . . . . . . 21 n.14

Illinois v. City of Milwaukee, Wisc., 406 U.S. 91 (1972) . . . . . . . . . . . . . . . . . 15 n.7

In re Estate of Marcos Human Rights Litig.,25 F.3d 1467 (9th Cir. 1994) . . . . . . . . . . . 7, 9

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) . . . . . . . 12, 18 n.10

Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007) . . 14, 18 n.10, 21 n.14, 22 n.14

viiKiobel v. Royal Dutch Petroleum Co.,

621 F.3d 111 (2d Cir. 2010) . . . . . . . . . passim

Kiobel v. Royal Dutch Petroleum Co., 642 F.3d 379 (2d Cir. 2011) . . . . . . . . . 22 n.14

Marsh v. Rosenbloom, 499 F.3d 165 (2d Cir. 2007) . . . . . . . . . . 15 n.9

McKenna v. Fisk, 42 U.S. 241 (1843) . . . . . . . . . . . . . . . . . . . . 36

Meyer v. Holley, 537 U.S. 280 (2003) . . . . . . . . . . . . . . . . 14, 25

Morrison v. Nat’l Austl. Bank Ltd.,

130 S. Ct. 2869 (2010) . . . . . . . . . . . . . 37 n.21

Presbyterian Church of Sudan v. Talisman Energy Inc., 582 F.3d 244 (2d Cir. 2009) . . . . . . . . . 22 n.14

Rasul v. Bush, 542 U.S. 466 (2004) . . . . . . . . . . . . . . . . . . . 34

Romero v. Drummond Co., Inc., 552 F.3d 1303 (11th Cir. 2008) . . . . . . . . . . . 6

Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009) . . . . . . . . . . . . . 23

Samantar v. Yousuf, 130 S. Ct. 2278 (2010) . . . . . . . . . . . . . . 14, 23

viii

Sarei v. Rio Tinto, PLC, 2011 U.S. App. LEXIS 21515 (9th Cir. Oct. 25, 2011) . . . . . . . . . . . . . . 15 n.8

Sosa v. Alvarez-Machain,542 U.S. 692 (2004) . . . . . . . . . . . . . . . passim

Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004). . . . . . . . . . . . . 23

Talbot v. Janson, 3 U.S. 133 (1795) . . . . . . . . . . . . . . . . . . . . . 37

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) . . . . . . . passim

Tex. Clinical Labs Inc v. Leavitt, 535 F.3d 397 (5th Cir. 2008) . . . . . . . . . 15 n.9

Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957) . . . . . . . . . . . . . 26, 27, 29

Trajano v. Marcos, 978 F.2d 493 (9th Cir. 1992) . . . . . . . . . . . . 33

Trustees of Dartmouth Coll. v. Woodward, 17 U.S. 518 (1819) . . . . . . . . . . . . . . . . 28 n.17

United States v. Bestfoods, 524 U.S. 51 (1998) . . . . . . . . . . 25-26, 27 n.16

ixUnited States v. Kimbell Foods,

440 U.S. 715 (1979) . . . . . . . . . . . . . 13, 14, 25

Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) . . . . 22 n.15

Federal statutes and rules

Alien Tort Statute, 28 U.S.C. § 1350 . . . . . . . passim

Act of Sept. 24, 1789, 1 Stat. 77 . . . . . . . 6 n.3, 33-34

Federal Rule of Civil Procedure 17 . . . . . . . . . . 15 n.9

State cases

Pease v. Burt, 3 Day 485, 1806 WL 202 (Conn 1806) . 36 n.20

Stoddard v. Bird, 1 Kirby 65 (Conn. 1786) . . . . . . . . . . . . . . . . 36

Taxier v. Sweet, 2 U.S. 81 (S. Ct. Pa. 1766) . . . . . . . . . 36 n.20

Watts v. Thomas,5 Ky. (2 Bibb) 458 (1811) . . . . . . . . . . . 36 n.20

xInternational treaties

Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3 . . . . . . . . . . . . . . . . . . . . . . . .

International cases

Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 3 (Feb. 5) . . . . . 28

In re Tesch, 13 Int’l L. Rep. 250 (Br. Mil. Ct. 1946) . . . . 30

Prosecutor v. Tadic, Case No. IT-91-1-T, Opinion & Judgment (May 7, 1997) . . 12 n.6

U.K. cases

Cartwright v. Pettus, 22 Eng. Rep. 916 (Ch. 1675) . . . . . . . . 36 n.20

Mostyn v. Fabrigas, 1 Cowp. 161 (K.B. 1774) . . . . . . . . . 35, 36 n.20

Restatements, treatises, briefs, opinions, and lawreview articles

William Blackstone, An Analysis of the Laws of England (6th ed. 1771) . . . . . . . . . . . 9

xiBrief of Professors of Federal Jurisdiction and

Legal History as Amici Curiae in Support of Respondents in Sosa v. Alvarez-Machain,2003 U.S. Briefs 339, reprinted in 28 Hastings Int’l & Comp. L. Rev. 99 (Feb. 27,2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Richard Burn & John Burn, 1 A New Law Dictionary: Intended for General Use, as Well as for Gentlemen of the Profession (1792) . . . . . . . . . . . . 34 n.19

John Cowell, The Interpreter of Words and Terms (1701) . . . . . . . . . . . . . . . . 34 n.19

Timothy Cunningham, 1 A New And Complete Law-Dictionary, or, General Abridgment of The Law (3d ed. 1783) . . . . . . . . . . . 34 n.19

William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the “Originalists,” 19 Hastings Int’l & Comp. L. Rev. 221 (1996) . . . . . . . . . . . . . . . 16

Alexander Hamilton, The Federalist No. 82 . 36 n.20

Giles Jacob, A New Law-Dictionary: Containing the Interpretation and Definition of Words and Terms Used in the Law (10th ed. 1782) . . . . . . . 34-35 n.19

James Kent, Commentaries on American Law . . . 9

xii1 A Modern Law Dictionary Containing

the Present State of the Law in Theory and Practice: With a Definition of its Terms; and the History of its Rise and Progress (T.E. Tomlin ed., 1797) . . . . . . . . . . . . . 34 n.19

Kenneth C. Randall, Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort Statute, 18 N.Y.U. J. Int’l L. & Pol. 1 (1985) . . . . . . . 17

Restatement (Third) of the Foreign Relations Law of the United States (1987) . . . . . . . . . . 9

Charles Viner, 2 Abridgment of Law and Equity of the Law of England (2d ed. 1790) . . 34 n.19

1

1 Amicus affirms that no counsel for a party authoredthe brief in whole or in part and no person other than amicus orits counsel made a monetary contribution to this brief.

2 Consent letters have been filed with the Court by theparties.

STATEMENTS PURSUANT TO SUPREMECOURT RULE 37

Amicus respectfully submits this Brief insupport of the Petitioners pursuant to SupremeCourt Rule 37.1 All parties to this appeal haveconsented to filing.2STATEMENT OF IDENTITY AND INTEREST

OF AMICUS CURIAEEarthRights International (ERI) is a human

rights organization based in Washington, D.C.,which litigates and advocates on behalf of victims ofhuman rights abuses worldwide. ERI hasrepresented plaintiffs in several lawsuits againstcorporations under the Alien Tort Statute (ATS), 28U.S.C. § 1350, alleging liability for, inter alia, aidingand abetting security forces in carrying out tortureand extrajudicial killings in foreign countries. E.g.,Doe v. Unocal Corp., No. 00-56603 (9th Cir.); Bowotov. Chevron Corp., No. 09-15641 (9th Cir.); Wiwa v.Royal Dutch Petroleum Corp., No. 96 Civ. 8386(S.D.N.Y.).

Amicus therefore has an interest in ensuringthat the courts apply the correct body of law toquestions of corporate liability under the ATS.

2STATEMENT OF THE ISSUE ADDRESSED BY

AMICUS CURIAEThe appropriate body of law to apply to the

question of whether corporations can be sued underthe ATS is federal common law. Under that body oflaw, corporations may be held civilly liable forviolations of certain international law norms.

INTRODUCTION AND SUMMARY OFARGUMENT

The Second Circuit held that, under the AlienTort Statute, victims of human rights abuses thatare universally recognized to violate internationallaw cannot sue corporations—no matter how horrificthe violation or extensive the corporation’sparticipation. In effect, it found that corporations areimmune simply by virtue of being corporations.

That holding contravenes the centuries-oldunderstanding, common to our legal system andevery other, that corporations can be sued just asnatural persons. And it would create a newexemption from liability for acts like genocide thatare so universally reviled that they render theperpetrator “an enemy of all mankind,” despite thefact that corporate immunity is anathema even inthe context of garden-variety torts.

“Sometimes,” as Judge Posner wrote for theSeventh Circuit in rejecting the Kiobel majority’sconclusion, “it’s in the interest of a corporation’sshareholders for management to violate . . . norms ofcustomary international law.” Flomo v. FirestoneNat. Rubber Co., LLC, 643 F.3d 1013, 1018 (7th Cir.

32011). Yet the Second Circuit’s decision deniesredress to those harmed. It rewards those fewcorporations willing to participate in the worst kindsof atrocity. And it penalizes companies that respectfundamental rights by forcing them to compete on anuneven playing field with those that choose to profitfrom acts that are everywhere prohibited.

Nothing in the law requires such an illogicalresult; every other Circuit to have considered thequestion has held that corporations may be sued. TheSecond Circuit’s conclusions that international lawcontrols the question of whether corporations can besued and that international law does not provide forcorporate liability are wrong in numerous respects.Amicus herein focuses on just one: the court erred bydeclining to apply federal common-law rules todetermine whether corporations may be held liable.

The conclusion that federal common lawgoverns is compelled by the text of the statute, whichrequires only a violation of international law, andthis Court’s holding in Sosa v. Alvarez-Machain, 542U.S. 692 (2004), that an ATS cause of action isprovided by federal common law. Thus, ATSjurisdiction requires a violation of a right guaranteedby international law: the injury to the plaintiff mustbe barred by the law of nations. But once jurisdictionhas been established, secondary questions —including questions regarding the scope of liability —must be determined according to federal commonlaw. The ordinary role of federal common law ingiving effect to federal claims and the originalpurpose of the ATS also require this approach.

4Even if courts must look initially to

international law to answer the question of whethercorporations can be held liable, that law itself directsthe court to domestic rules. International law leavesthe question of how international norms will beenforced to the domestic law of States. This principlehas been recognized since the drafting of the ATS.Faithful adherence to it is especially warranted inthe context of private civil liability, whichinternational law typically does not address, and forcorporations, which are created by municipal law.

In assessing whether corporations can be heldliable, courts look to well-established federal ortraditional common law rules. Liability rules drawnfrom common law principles may be informed byrules found in international law, but Sosa’s thresholdtest for identifying jurisdiction-conferring norms ofinternational law does not apply to the internal rulesfor allocating liability. The applicable rule must giveeffect to Congress’ purposes in enacting the ATS.

Corporate liability has been a feature of thecommon law since the Founding. International law,in the form of general principles recognized by all ofthe world’s legal systems, also recognizes suchliability. Indeed, corporate liability is inherent in thewhole notion of incorporation, which allows suitsagainst the corporation itself in exchange for thelimitation of shareholder liability. Corporate liabilityalso furthers the principle that those responsible forviolations of fundamental human rights norms

5ordinarily have no immunity before the law, andthus implements Congress’ goals of vindicatinginternational law and providing an adequate federalforum. The ATS provides no exception to the rulethat corporations are civilly liable to the same extentas natural persons.

The text of the statute and the common lawnature of the claim also require that the districtcourts have jurisdiction over torts in violation of thelaw of nations regardless of where those tortsoccurred. From the nation’s inception to today, atortfeasor’s wrongful act creates an obligation that isenforceable wherever he is found. Amicus, however,addresses this issue only in case Respondentsbelatedly attempt to raise it. The issue does not fallwithin the questions presented upon which certiorariwas granted, and should not be considered.

ARGUMENTI. Federal common law governs the issue of

whether corporations can be sued underthe ATS.The Second Circuit erroneously concluded

that, in order for corporations to be held liable underthe ATS, customary international law mustspecifically provide for corporate liability. Kiobel v.Royal Dutch Petroleum Co., 621 F.3d 111, 118 (2dCir. 2010). That decision conflicts with the statute’stext, this Court’s holding in Sosa that an ATS claimis a common law cause of action, the historic practice

6

3 The ATS originally provided “cognizance” of “all causeswhere an alien sues for a tort only in violation of the law ofnations.” Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77. There is noevidence that the alterations changed the statute’s scope.

of federal courts of applying federal common law toeffectuate federal claims, the ATS’s original purposeof ensuring that claims involving international lawcould be heard in federal court and the structure ofinternational law, which leaves the means ofenforcement of international norms to domestic law.

All of these disparate strands point to a singleconclusion: while customary international lawdefines the content of the right whose violation givesrise to ATS jurisdiction, federal common lawdetermines whether corporations may be held liable.

A. The text of the ATS, Sosa, theordinary role of federal commonlaw and the purpose of the ATS alldirect the court to federal commonlaw.1. The text of the ATS requires

that federal common lawgoverns.

The ATS grants jurisdiction over “any civilaction by an alien for a tort only, committed inviolation of the law of nations.” 28 U.S.C. § 1350.3The statute “by its terms does not distinguish amongclasses of defendants.” Argentine Republic v.Amerada Hess Shipping Corp., 488 U.S. 428, 438

7(1989). This alone compels the conclusion that theATS includes no limit on corporate liability. Romerov. Drummond Co., Inc., 552 F.3d 1303, 1315 (11thCir. 2008) (finding corporations can be sued based onthe statute’s text).

But even if the statute’s plain language doesnot answer the question at bar, it refutes the SecondCircuit’s contention that international law governsthat question. The court below read the text to meanthat liability must arise under customaryinternational law. Kiobel, 621 F.3d at 121–22. Butthe ATS confers jurisdiction over tort actionsinvolving the alleged transgression of certaininternational law norms. The text does not requirethat the cause of action “arise under” the law ofnations; “by its express terms, nothing more than aviolation of the law of nations is required.” Tel-Orenv. Libyan Arab Republic, 726 F.2d 774, 779 (D.C. Cir.1984) (Edwards, J., concurring) (emphasis inoriginal); accord In re Estate of Marcos HumanRights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994).Thus, the text does not require that internationallaw must define who can be a proper defendant.Indeed, as detailed in the next section, ATSjurisdiction authorizes liability under domesticcommon law, not international law.

Moreover, the word “tort” precludes the claimthat international law governs this question. “Tort”is a domestic law concept. Once a tort suit isauthorized for a particular international norm, the

8attributes of tort law, including corporate liability,apply. And since the notion of tort comes fromdomestic law, so too must the tort principles.

The Second Circuit’s reading of the ATScannot be reconciled with the text.

2. Sosa directs courts to applyfederal common law.

Sosa made clear that “although the ATS is ajurisdictional statute,” the “jurisdictional grant isbest read as having been enacted on theunderstanding that the common law would provide[the] cause of action.” 542 U.S. at 724. While theremust be a “violation[] of [an] international law norm”to invoke the ATS, the claims are “claims underfederal common law.” Id. at 732; accord id. at 721.

Sosa’s conclusion that federal law provides thecause of action flows expressly from the eighteenth-century understanding of international law, relyingheavily on Blackstone. See id. at 714–24. Sosarecognized that private parties were capable ofviolating certain norms and thereby “threateningserious consequences in international affairs,” andthat these violations were “admitting of a judicialremedy” — i.e., subject to domestic enforcement. Id.at 715.

Blackstone confirms that violations ofinternational law by private parties have alwaysbeen addressed through domestic processes: “[W]hencommitted by private subjects,” violations of the law

9of nations “are then the objects of the municipal law.”William Blackstone, An Analysis of the Laws ofEngland 125 (6th ed. 1771). Kent’s Commentaries,also cited by Sosa, note that although States wagewar to enforce rules among themselves, “[t]he law ofnations is likewise enforced by the sanctions ofmunicipal law.” 1 James Kent, Commentaries onAmerican Law *181–82. This is why Sosa speaks ofrecognizing claims “under federal common law forviolations of [an] international law norm.” 542 U.S.at 732.

Indeed, even Sosa’s threshold test fordetermining whether the violation of aninternational norm affords jurisdiction involves afederal common law inquiry. Under that test, theinternational norm must have “[no] less definitecontent and acceptance” among nations than the“historical paradigms familiar when § 1350 wasenacted.” Id. at 732. This standard is “generallyconsistent with” prior cases requiring that a norm bespecific (or definable), universal, and obligatory. Id.(citing Tel-Oren, 726 F.2d at 781 (Edwards, J.,concurring); Marcos, 25 F.3d at 1475). The specificitythe Sosa test requires is not a prerequisite underinternational law for recognition of a norm ascustomary. See Restatement (Third) of the ForeignRelations Law of the United States § 102(2) (1987)(customary international law requires consistent

10

4 Moreover, since “the domestic law of the United Statesrecognizes the law of nations,” Sosa, 542 U.S. at 729, even theinternational law that courts look to in considering thethreshold question of whether there has been a jurisdiction-conferring violation is in some sense federal common law.

state practice followed from sense of legal obligation).Rather, it is a matter of ATS jurisprudence.4

For all of these reasons, any suggestion thatinternational law defines every aspect of an ATSaction would render meaningless Sosa’s holding thatthe ATS allows federal courts to recognize causes ofaction at federal common law. The ambit of federalcommon law necessarily includes substantiveliability standards. That is what Sosa meant by afederal common law claim and why it noted that the“post-Erie understanding [of federal common law]has identified limited enclaves in which federalcourts may derive some substantive law in a commonlaw way.” 542 U.S. at 729 (emphasis added). Indeed,international law today, as when the law was passed,still does not address civil liability for violations ofinternational law, but instead leaves such matters todomestic law. See infra Section I.B.

Accordingly, once the threshold test fordetermining whether there has been a violation thatgives rise to federal jurisdiction has been met,federal common law governs the scope of liability.Put another way, under Sosa, the right — the legalprinciple that prohibits the harm the plaintiffsuffered — must come from international law.

11Kiobel, 621 F.3d at 153 (Leval, J., concurring). Butthe manner in which a jurisdiction-conferringinternational norm can be enforced under the ATS —i.e. the rules governing liability or what some courtshave described as the remedy, see Section I.B infra —is a question of federal common law.

The Kiobel court relied upon footnote 20 ofSosa to conclude that customary international lawgoverns the scope of ATS liability. 621 F.3d at127–28 (citing 542 U.S. at 732 n.20). But thatfootnote actually treated corporations and naturalpersons in the same way. Kiobel, 621 F.3d at 165(Leval, J., concurring). Moreover, footnote 20 did notaddress issues of liability, but instead suggested thatwhether for a given norm the perpetrator must be astate actor is a question of international law. 542U.S. at 732 n.20. This fully accords with thedistinction between the right violated (defined byinternational law) and the scope of the remedialcause of action (provided by domestic law). Whereinternational law requires state action, it is anelement of the offense and thus part of what defineswhether any international right has been violated atall.

For example, torture typically only implicatesinternational law where state agents are involved;torture by a purely private party is not generally aviolation of the law of nations. By contrast,customary international law prohibits other abuses,such as genocide, regardless of state involvement.

12

5 See Bowoto v. Chevron Corp., No. C 99-02506, 2006U.S. Dist. LEXIS 63209, *37 (N.D. Cal. Aug. 22, 2006) (notingthat “[t]he dividing line for international law has traditionallyfallen between States and private actors,” and that thereforethere is little reason to differentiate between corporations andnatural persons).

6 E.g., Prosecutor v. Tadic, Case No. IT-91-1-T, Opinion& Judgment ¶ 655 (May 7, 1997) (crimes against humanity canbe committed by “any organization or group, which may or maynot be affiliated with a Government” (internal punctuationomitted)).

See id. The distinction — and the reason that thequestion of whether state action is required is one ofinternational law — is that not all acts thatinternational law forbids if committed by a stateactor are of sufficiently “universal concern” ifcommitted by a private actor. See Kadic v. Karadzic,70 F.3d 232, 240 (2d Cir. 1995).

There is no comparable dichotomy betweenliability for natural persons and corporations.5 Anabuse that is of universal concern, either because itinvolves state action or because by its nature it doesnot require state action to disrupt the internationalorder, is not any less so because a corporation isresponsible.6 Whether a corporation can be heldliable is not an element of the international law rightthat a plaintiff must prove has been violated. Rather,it is an issue that arises only after the plaintiffestablishes the elements of that right — a question ofwhether a state makes a particular cause of actionavailable to the injured party. Nothing in footnote 20

13suggests that, where a violation of international lawhas been committed, international rules mustdetermine who can be held liable for that violation.

Accordingly, the Kiobel majority asked thewrong question when it considered whethercorporate liability meets the Sosa threshold standardfor determining whether violation of a particularright gives rise to jurisdiction. As a result, it erredwhen it held that ATS cases cannot be broughtagainst corporations unless international law itselfexpressly provides for corporate liability. Sosacontemplated an ordinary common law tort claim toremedy violations of universally recognized humanrights norms that meet the Sosa threshold test.

3. Courts generally look tofederal liability rules toeffectuate federal causes ofaction.

The judiciary’s ordinary approach to federalclaims also requires courts to apply federal commonlaw to the issues at bar. Federal courts nearlyalways apply preexisting, general liability rules togive effect to federal causes of action. See UnitedStates v. Kimbell Foods, 440 U.S. 715, 727 (1979); seealso Burlington Indus., Inc. v. Ellerth, 542 U.S. 742,754–55 (1998) (fashioning a “uniform and predictablestandard” of vicarious liability in Title VII actions“as a matter of federal law”).

14

7 See also County of Oneida, N.Y. v. Oneida IndianNation of New York State, 470 U.S. 226, 237 (1985) (noting thatfederal common law is a “necessary expedient” where a statutehas not spoken to a particular issue and applying federalcommon law to question of whether plaintiff had a right of

Such an approach is consistent with long-recognized canons of statutory construction. WhenCongress creates a tort action, it “legislates against alegal background” of ordinary tort liability rules andintends to incorporate those rules. Meyer v. Holley,537 U.S. 280, 285 (2003). And should Congress wishto abrogate a common-law rule, the statute must“speak directly” to the question addressed by thecommon law. Id. Moreover, “[t]he canon ofconstruction that statutes should be interpretedconsistently with the common law helps us interpreta statute that clearly covers a field formerlygoverned by the common law.” Samantar v. Yousuf,130 S. Ct. 2278, 2289 (2010). If a statute thatdisplaces the common law should be interpretedconsistently with common law rules, then surely thecommon law must provide the default rule for a lawthat does not displace the common law, but insteadcreates jurisdiction to hear a common law cause ofaction.

Moreover, courts apply federal common law “tofill the interstices of federal legislation.” KimbellFoods, 440 U.S. at 727; accord Sosa, 542 U.S. at 726(discussing this rule); Khulumani v. Barclay Nat’lBank Ltd., 504 F.3d 254, 287 (2d Cir. 2007) (Hall, J.,concurring) (applying this rule to the ATS).7 The text

15

action); Illinois v. City of Milwaukee, Wisc., 406 U.S. 91, 100–04(1972) (holding that federal courts may fashion federal commonlaw remedies regarding interstate water pollution, a matter offederal concern, where federal legislation did not address thespecific issue).

8 Nor does international law preclude corporate liability.Section I.B, infra. On the contrary, it contemplates suchliability. Section II.B, infra. ; Petitioners Br. at 43–47; Sarei v.Rio Tinto, PLC, 2011 U.S. App. LEXIS 21515 (9th Cir. Oct. 25,2011)(en banc) (finding international law recognizes corporateliability for war crimes and genocide); Flomo, 643 F.3d at 1017(noting that sanctions were inflicted on corporations underinternational law in the wake of World War II).

9 The majority’s assumption that international lawgoverns the question at bar also cannot be reconciled with thebackground principle established by Federal Rule of CivilProcedure 17(b)(2). Under that Rule, a corporation’s capacity tobe sued is determined “under [the law by] which it wasorganized.” See Community Elec. Service of Los Angeles, Inc. v.National Elec. Contractors Ass'n, Inc., 869 F.2d 1235, 1239 (9thCir. 1989) (“Rule 17(b) prevails over [federal] antitrust law andrequires us to apply California law”); Tex. Clinical Labs Inc v.Leavitt, 535 F.3d 397, 403 (5th Cir. 2008) (applying Rule 17(b)to Social Security Act claim); see also Marsh v. Rosenbloom, 499F.3d 165, 176–77, 184 (2d Cir. 2007) (citing Rule 17(b) andholding that CERCLA does not preempt state law regardingcorporate capacity). While application of Rule 17 would point to

of the statute neither precludes corporate liabilitynor requires that the question be resolved underinternational law. See supra Section I.A.1.8 Thus,even if the text and Sosa were agnostic on the properbody of law to apply, which they are not, such silencewould be a further reason to look to federal commonlaw.9

16

the law of the place of incorporation rather than federalcommon law, it confirms that international law does not control.

4. Congress’ original purpose ofproviding a federal forumsuggests that who can be suedmust be determined bycommon law rules.

In passing the ATS, Congress sought toprovide a federal forum for that limited subset oftorts that implicate the law of nations. As Sosarecognized, the First Congress was concerned about“the inadequate vindication of the law of nations”and that the United States was failing to provide auniform forum for redress of a series of crimesagainst ambassadors and violations of the law ofneutrality, as well as eagerness to prove itscredibility as a new nation. 542 U.S. at 715–19. Statecourts already had jurisdiction over such suits. Sosa,542 U.S. at 722; Tel-Oren, 726 F.2d at 790 (Edwards,J., concurring). But Congress was afraid that statecourts could not be trusted to give aliens a fairhearing and might come to divergent conclusionsabout the content of the law of nations, and thereforewanted to provide an alternative federal forum. Tel-Oren, 726 F.2d at 783–84, 790–91 (Edwards, J.,concurring); William S. Dodge, The HistoricalOrigins of the Alien Tort Statute: A Response to the“Originalists,” 19 Hastings Int’l & Comp. L. Rev. 221,235–36 (1996). Thus, the First Congress desired tomake federal courts more accessible to foreigners

17bringing these sorts of tort claims. See Kenneth C.Randall, Federal Jurisdiction over International LawClaims: Inquiries into the Alien Tort Statute, 18N.Y.U. J. Int’l L. & Pol. 1, 21 (1985).

Given these aims, the First Congress wouldhave expected federal courts to resolve the questionof who could be sued by reference to the familiarbody of general common law—just as state courtswould do. Any other approach could potentiallyexclude from federal court certain suits involvingviolations of the laws of nations even though thosesame suits would be heard in state court. That isprecisely what the statute meant to avoid. Tel-Oren,726 F.2d at 790–91 (Edwards, J., concurring).

B. International law itself requires theconclusion that federal commonlaw applies.

Even if the Kiobel majority were correct thatcourts must first look to international law, theapplicable rule would still ultimately come fromfederal common law, because international law itselfdirects courts to domestic law. The Framers’understanding that international law is enforcedthrough domestic law remains true today.

As courts in ATS cases have long recognized,international human rights law generally leaves themanner in which it is enforced by States to their own

18

10 See, e.g., Doe v. Exxon Mobil Corp., 654 F.3d 11, 42(D.C. Cir. 2011); Flomo, 643 F.3d at 1020 (concluding that“[i]nternational law imposes substantive obligations and theindividual nations decide how to enforce them”); Marcos, 25F.3d at 1475; Kadic, 70 F.3d at 246 (holding that internationallaw “generally does not create private causes of action toremedy its violations, but leaves to each nation the task ofdefining the remedies that are available for international lawviolations”); Kiobel, 621 F.3d at 172–76, 187–89 (Leval, J.,concurring) (noting that international law establishes “norms ofprohibited conduct,” but “says little or nothing about how thosenorms should be enforced,” leaving these questions to domesticlaw); Khulumani, 504 F.3d at 286 (Hall, J., concurring) (findingthat “[i]t is a ‘hornbook principle that international law does notspecify the means of its domestic enforcement’”); Tel-Oren, 726F.2d at 778 (Edwards, J., concurring) (holding that “the law ofnations never has been perceived to create or define the civilactions to be made available by each member of the communityof nations,” and that although international law governs thequestion of whether there has been a violation, the decision of“how the United States wishe[s] to react to such violations [is a]domestic question”).

discretion.10 In Sosa, this Court adopted the principlediscussed in detail by Judge Edwards in hisconcurrence in Tel-Oren, 726 F.2d at 777–82, thatunder the ATS, international law itself need notprovide a private cause of action; the Court rejectedJudge Bork’s contrary view, which would havenullified the ATS. Sosa, 542 U.S. at 714, 724,729–31. In short, the “‘position of international lawon whether civil liability should be imposed forviolation of its norms is that international law takesno position and leaves that question to each nation toresolve.’” Doe v. Exxon Mobil Corp., 654 F.3d 11, 51

19

11 See Flomo, 643 F.3d at 1019 (underscoring thedistinction between a customary international law principle“and the means of enforcing it, which is a matter of procedure orremedy”); Exxon Mobil, 654 F.3d at 41–42 (holding that becauseinternational law “creates no civil remedies and no private rightof action [] federal courts must determine the nature of any[ATS] remedy . . .by reference to federal common law”)

12 The same is clear from the quotes in the previous twofootnotes. Thus, Judge Leval’s concurrence recognizes that the

(D.C. Cir. 2011) (quoting Kiobel, 621 F.3d at 152(Leval, J., concurring)). Thus, international law, likeSosa, distinguishes the question of whether a personhas suffered a violation of an international rightfrom the scope of the remedial cause of action a statechooses to provide.11

The Kiobel majority conceded thatinternational law “leave[s] remedial questions toStates.” 621 F.3d at 147. But it then proceeded todefine “remedial” in its narrowest sense, limiting itto forms of relief available — damages, declaratoryrelief, an injunction — without regard to how theterm is used in international law. Id. at 147 & n.50.As Sosa recognized, “remedy” in this context signifiesthe means to enforce a right, equivalent to a cause ofaction. In discussing whether to allow a cause ofaction for the brief arbitrary detention at issue inthat case, this Court referred to “the creation of afederal remedy.” 542 U.S. at 738. Plainly the Courtwas speaking of whether a cause of action wasavailable, not what form of relief the plaintiff couldrecover.12

20

“remedy” at issue in this context is the means of enforcementand redress generally, and is thus much broader than merelywhat kind of relief a plaintiff may recover. Kiobel, 621 F.3d at175 n.33 (Leval, J., concurring). Indeed, in conflating “remedy”with “relief,” the Kiobel majority departed from establishedSecond Circuit law. In Kadic, the court equated “creat[ing]private causes of action” under the ATS with “defining theremedies.” 70 F.3d at 246.

13 The majority appears to acknowledge that itembraced this view. 621 F.3d at 122, n.24. Contrary to themajority’s suggestion, id., this position is not deemed wrongbecause Judge Bork held it, but because Sosa rejected it.

The Second Circuit’s position would rendermeaningless the principle that international lawallows States to define domestic remedies, and wouldrender the statute a nullity. The specific type of reliefavailable only matters if there is a civil cause ofaction. But as we have just seen, international lawdoes not provide one. So under the Second Circuit’sapproach, there would be no claims for which thecourts could apply relief — against a corporation or anatural person, see Flomo, 643 F.3d at 1019; Kiobel,621 F.3d at 153, 176, 178 (Leval, J., concurring) —and thus no issue left to domestic law.

The Kiobel majority’s claim that the ATSrequires that international law provide a right to suecorporations is simply a version of the position Sosarejected that international law must provide theright to sue. Kiobel, 621 F.3d at 176 (Leval, J.,concurring).13 Since international law does notaddress whether there is a right to sue anyone, it

21

14 That corporate liability is a question to be decidedunder federal common law is clear even if there is somedisagreement about where the line is drawn in other areas,such as accomplice liability standards. According to one view,federal common law governs complicity standards, in partbecause the means of domestic enforcement that internationallaw leaves to States includes at least some theories ofaccessorial liability. E.g., Khulumani, 504 F.3d at 286–87 (Hall,J., concurring); see generally Hamdan v. Rumsfeld, 548 U.S.557, 611 n.40 (2006) (op. of Stevens, J.) (noting that aiding and

cannot be expected to explicitly provide a right to suea corporation. Id.

Whether a corporation may be held liable intort for violations of international law is necessarilya question international law leaves to states todetermine for themselves, and thus for the federaljudiciary “to answer in light of its experience withparticular remedies and its immersion in the nation’slegal culture,” rather than by reference to customaryinternational law. Flomo, 643 F.3d at 1020. For thisreason, courts and judges have explicitly rejected theSecond Circuit’s approach and instead appliedfederal common law to this issue. Id. at 1019–20;Exxon Mobil, 654 F.3d at 41–43, 50; Kiobel, 621 F.3dat 174–76 (Leval, J., concurring); see also Kiobel v.Royal Dutch Petroleum Co., 642 F.3d 379, 380 (2dCir. 2011) (Lynch, J., dissenting from denial ofrehearing en banc) (four judges opining that,“for thereasons stated by Judge Leval,” the Kiobel decision is“very likely incorrect”). The majority’s opinion cannotbe reconciled with the manner in which internationallaw contemplates its own enforcement.14

22

abetting is a theory of liability for a violation, not an aspect ofthe right violated). Under another school of thought,international law governs, based on the belief that conduct-regulating norms must come from international law. Id. at268–70 (Katzmann, J., concurring); Presbyterian Church ofSudan v. Talisman Energy, Inc., 582 F.3d 244, 258 (2d. Cir.2009) (adopting Judge Katzmann’s position); Exxon Mobil, 654F.3d at 30, 33 (same). The question, of course, need not andshould not be resolved here. Notably, however, judges whosubscribe to the position that accomplice liability is determinedaccording to customary international law have rejected Kiobeland concluded that corporate liability is determined accordingto domestic law, at least in part because corporate liability isnot conduct-regulating. Exxon Mobil, 654 F.3d at 41–43, 50–51;Kiobel, 621 F.3d at 187–89 (Leval, J., concurring); Kiobel, 642 F.3d at 380–81 (Katzmann, J., dissenting from denial of en bancreview).

15 See, e.g., Cabello v. Fernandez-Larios, 402 F.3d 1148,1158 (11th Cir. 2005); Abebe-Jira v. Negewo, 72 F.3d 844, 848(11th Cir. 1996); Doe v. Islamic Salvation Front, 257 F. Supp. 2d115, 120 n.12 (D.D.C. 2003); Eastman Kodak Co. v. Kavlin, 978F. Supp. 1078, 1094 (S.D. Fla. 1997); Xuncax v. Gramajo, 886 F.Supp. 162, 182–83 (D. Mass. 1995).

C. Courts commonly apply federalcommon law in ATS cases.

Contrary to Kiobel, the general trend in casesboth before and after Sosa has been to applyprinciples drawn from federal common law to issuesbeyond the right violated.15

Indeed, the Second Circuit’s approach, underwhich all substantive issues must be decided underinternational law, arguably would preclude theapplication of any number of established federal

23common law doctrines that are routinely applied inATS cases. Courts, however, have not questionedthat these doctrines apply regardless of whether theyreflect international law.

For example, in a recent ATS case, this Courtheld that federal common law governed the questionof whether a foreign official was immune from suit.Samantar, 130 S. Ct. at 2284. Similarly, in Saleh v.Titan Corp., 580 F.3d 1, 5 (D.C. Cir. 2009), cert.denied, 2011 U.S. LEXIS 4854 (U.S. June 27, 2011),the court determined that the federal common lawdoctrine of government contractor immunity appliedin an ATS case. Such a doctrine is alien tointernational law, and Saleh never suggested that itmust be found in international law. Indeed,international law does not recognize personalimmunities for offenses such as war crimes. SeeRome Statute of the International Criminal Court,art. 27, July 17, 1998, 2187 U.N.T.S. 3. Doctrinessuch as head-of-state immunity, and even thesovereign immunity of the United States, are alsofederal common-law doctrines. See, e.g., Tachiona v.United States, 386 F.3d 205, 220 (2d Cir. 2004)(head-of-state immunity); Gray v. Bell, 712 F.2d 490,506 (D.C. Cir. 1983) (sovereign immunity).

No court has suggested that international lawshould displace these federal common law doctrines.Were courts to apply international law to theseissues, all of which bear on a defendant’s liability,these doctrines would fall away. The same reasoning

24holds true for other liability principles. Federalcommon law applies to all ancillary issues in ATScases, including the scope of liability.II. Federal common law provides for

corporate liability.Concluding that federal common law rules

govern the issue of corporate liability does not endthe inquiry. The Court must consider what sources toconsult as part of a federal common law analysis andthen discern the applicable rule. The primary sourceis preexisting, well-established federal or traditionalcommon law rules, as well as relevant internationallaw. The rule established must best implementCongress’ purposes in enacting the statute. Here, therelevant question is, when a norm that meets Sosa’sthreshold test is violated, does corporate liability orcorporate immunity better effectuate Congress’ aims?

In this case, discerning the applicable rule iseasy. Under both ordinary common law principlesand international law, corporations are liable on anequal footing with natural persons. This rule alsovindicates the policies animating the ATS.Accordingly, the Court should simply adopt the usualrule of corporate liability rather than creating aspecial rule that corporations should be immunefrom suit for participating in violations of universallyrecognized human rights.

25A. The applicable liability rules

incorporate established federal ortraditional common law rules andinternational law.

The first question courts typically ask indiscerning a federal common law rule is whether toadopt state law or apply a uniform federal rule. E.g.Kimbell Foods, 440 U.S. at 727. In cases involvinginternational law, courts should apply a uniformfederal rule. Banco Nacional de Cuba v. Sabbatino,376 U.S. 398, 425–26 (1964). This is especially truehere, since one purpose of the ATS was to ensurethat a uniform body of law would apply to thesekinds of claims. See supra Section I.A.4.

The appropriate focus of the analysis is onordinary common law tort principles. As noted above,the ATS creates a federal cause of action underwhich federal common law tort principles are used toredress violations of customary international law.Such reference to widely applied common lawprinciples also accords with the manner in whichfederal courts typically establish uniform federalstandards, e.g., Burlington Indus., 524 U.S. at 754,as well as the rule that Congress must “speakdirectly” to a question in order abrogate a commonlaw principle. Meyer, 537 U.S. at 285. Indeed, thisCourt has held that “the failure of the statute tospeak to a matter as fundamental as the liabilityimplications of corporate ownership demandsapplication of” this rule. United States v. Bestfoods,

26524 U.S. 51, 63 (1998). Additionally, courts mayconsult state law in discerning the federal rule thatwill best effectuate the policy of the statute. TextileWorkers Union v. Lincoln Mills, 353 U.S. 448, 457(1957).

Moreover, due to the unique nature of ATSclaims as federal common law claims vindicatinginternational law rights, it may also be appropriateto consider international legal principles. Forexample, in determining the relative rights ofcontending states, which are analogous to individualnations, this Court has looked to international law aswell as federal and state law. Connecticut v.Massachusetts, 282 U.S. 660, 670 (1931).International law may contain gaps that make itinappropriate as the primary source of liability rules;yet, where international law accords withestablished federal law, there can be little argumentagainst its application in ATS cases, in part becauseinternational law is part of federal law. Sosa, 542U.S. at 729. The touchstone, however, remainsfederal common law. This means both that a liabilityrule need not meet Sosa’s threshold standard fordetermining whether there has been a violation thatsupports jurisdiction, and that an internationalprinciple that accords with federal common lawprovides further support for that common lawstandard, even if the international principle does notmeet the Sosa test.

27

16 See also Agency Holding Corp. v. Malley-Duff &Associates, Inc., 483 U.S. 143, 154 (1987) (holding that courtshould avoid creating statute of limitations rule that would“thwart the legislative purpose of creating an effectiveremedy”).

The federal common law rule must implementthe policies underlying the statute at issue. TextileWorkers, 353 U.S. at 457 (holding that courts “look[]at the policy of the legislation and fashion[] a remedythat will effectuate that policy”); Abebe-Jira v.Negewo, 72 F.3d 844, 848 (11th Cir. 1996) (applyingTextile Workers to the ATS).16 Thus, the applicablerule in this case must give effect to Congress’sdecision to recognize tort liability for violations ofinternational law.

Here, the precise methodology for determiningthe applicable federal common law rule is notcritical, because, as the next sections demonstrate,ordinary common law principles, international lawand the policies animating the ATS all requirecorporate liability.

B. Under federal common law,corporations are subject to thesame liability rules as naturalpersons.

The common law subjects corporations to thesame civil liability as natural persons; this isinherent in the whole notion of corporate personality,

28

17 See Petitioners’ Br. at 26 n.18; Exxon Mobil, 654 F.3dat 47–48 (collecting cases); Trustees of Dartmouth College v.Woodward, 17 U.S. (4 Wheat.) 518, 667 (1819) (noting that a“corporation at common law . . . possesses the capacity . . . ofsuing and being sued”) (op. of Story, J.); Daniels v. Tearney, 102U.S. 415, 420 (1880) (noting that a corporation is liable formalicious torts, including assault and battery); Bestfoods, 524U.S. at 62–65 (applying ordinary common law principles toCERCLA and finding that corporations can be held liable eitheron a veil-piercing theory or for their own acts).

and has been the rule for centuries.17 Indeed, thisCourt noted well over a hundred years ago that thecommon law principle that a corporation is equallyresponsible as a natural person for torts done by itsservants is “so well settled as not to require thecitation of any authorities.” Baltimore & P.R. Co. v.Fifth Baptist Church, 108 U.S. 317, 330 (1883).Amicus is aware of no state that departs from thisrule.

International law supports federal commonlaw in recognizing that corporations can be sued.Petitioners’ Br. at 43–47. In Barcelona Traction,Light and Power Co., Ltd. (Belg. v. Spain), 1970I.C.J. 3 (Feb. 5), the International Court of Justicenoted that international law recognized corporationsas institutions “created by States” within theirdomestic jurisdiction, and that the court thereforeneeded to look to general principles of law — aspecies of international law derived from principlescommon to States’ domestic law — to answerquestions about corporate separateness. Id. at 33–34,

2937. This Court, citing Barcelona Traction, upheld acounterclaim “aris[ing] under international law”against a Cuban government corporation for theillegal expropriation of property, under principles“common to both international law and federalcommon law.” First Nat’l City Bank [FNCB] v. BancoPara El Comercio Exterior De Cuba, 462 U.S. 611,623 (1983). Furthermore, as the Second Circuit hasrecognized, general principles provide rulesapplicable in ATS cases. Flores v. S. Peru CopperCorp., 414 F.3d 233, 251 (2d Cir. 2003). All legalsystems recognize that corporations can be sued; thisrule is a general principle of law. The “understandingof corporate personhood [reflected in FNCB andBarcelona Traction] is directly contrary to theconclusion of the majority in Kiobel.” Exxon Mobil,654 F.3d at 54.

Since the rule that corporations can be heldliable in tort is clear in both domestic andinternational law, it should be applied under theATS. Indeed, doing so avoids resort to the “judicialinventiveness” that federal common law sometimesrequires. Textile Workers, 353 U.S. at 457. Theopposite would be true if this Court were to departfrom domestic and international principles to craft anew immunity.

30C. Corporate liability best effectuates

the Framers’ purposes in passingthe ATS.

As Sosa recognized, the ATS was enacted tovindicate the laws of nations. 542 U.S. at 717. Thus,the ATS expresses a basic Congressional policy ofusing tort law to redress international wrongs. Thesame corporate liability rule that ordinarily appliesin tort cases furthers Congress’ goals in passing thestatute, for at least four reasons.

First, liability rules under the ATS mustreflect the universal condemnation of the underlyingviolations. Filártiga v. Peña-Irala, 577 F. Supp. 860,863 (S.D.N.Y. 1984). A holding that the samecorporate liability that applies to run-of-the-milltorts does not apply to genocide, state-sponsoredtorture or crimes against humanity would turn thisprinciple on its head. International law is subvertedif, for example, a modern day Tesch & Stabenow —whose top two officials were convicted at Nurembergfor supplying poison gas for the death chambers ofAuschwitz, In re Tesch, 13 Int’l L. Rep. 250 (Br. Mil.Ct. 1946) — can participate in and profit fromatrocity and not be held to account by its victims.

Second, tort law’s twin aims — compensationand deterrence — cannot be achieved withoutholding corporations liable. Where a corporation isinvolved in abuse, the corporation, not its agents,reaps the profits. Thus, there is no reason to believethe agents have the wherewithal to provide redress.

31

18 This brief’s argument that ATS claims were part ofthe common law and required no implementing legislation wasadopted by Sosa. 542 U.S. at 714.

Flomo, 643 F.3d at 1019; Kiobel, 621 F.3d at 179(Leval, J., concurring). And since it is sometimes in acorporation’s interests to violate international law,Flomo, 643 F.3d at 1018, a rule that only acorporation’s agents are potentially liable wouldunder-deter abuse.

Third, Congress passed the ATS in partbecause it preferred claims involving internationallaw to be heard in federal rather than state court.See supra Section I.A.4. The First Congress wouldnot have wanted a foreign claimant, who could sue acorporation if he filed his claim in state court, to bebarred from federal court. Indeed, in many modernATS cases, the plaintiffs also plead municipalcommon law tort claims. Precluding corporateliability would disadvantage aliens’ claims arisingunder the law of nations vis-a-vis their state lawclaims — thus “treat[ing] torts in violation of the lawof nations less favorably than other torts,” contraryto the Framers’ understanding. See Brief ofProfessors of Federal Jurisdiction and Legal Historyas Amici Curiae in Support of Respondents in Sosa v.Alvarez-Machain [“Legal Historians’ Brief”], 2003U.S. Briefs 339, reprinted in 28 Hastings Int’l &Comp. L. Rev. 99, 110 (2004).18 The Kiobel majority’sposition would undermine the purposes of the ATS

32by leaving at least some such plaintiffs recourse onlyto state court.

Fourth, refusing to recognize corporateliability would lead to absurd results. The ability tosue the corporation is inherent in the notion oflimited shareholder liability; plaintiffs may sue thecorporation because limited liability ordinarilyimmunizes the shareholders. If corporations were notlegal persons that could be sued, they could not beconsidered legal persons separate from theirshareholders. And if a corporation is not a separateperson, it is simply an aggregation of agents (thecorporation’s directors, officers and employees) actingon shareholders’ behalf. Thus, if corporations cannotbe sued, the owners would be liable on an agencytheory for everything that employees of the companydo, without need to pierce any veil.

To find that neither corporations nor theirshareholders could be sued, the Court would have tofind an affirmative rule of corporate immunity —that shareholders may create a corporation to holdtheir assets and carry on their business, interposethat corporation as a shield against their ownliability, and yet not subject the corporation toliability. Neither federal common law norinternational law creates any such immunity.Corporate personality for the purposes of limitingshareholders’ liability and corporate personality forthe purposes of being sued are two sides of the same

33coin, and both derive from principles of domestic lawcommon to all legal systems.

* * *Under the ATS, the violation of international

law gives rise to a federal common-law tort cause ofaction. Where it is necessary to answer a questionthat the text does not address, courts — giving dueregard to the ATS’s history and purposes — mustresort to federal common law. The same corporateliability that applies to ordinary torts is not too strictwhen applied to genocide, torture or slavery. Ifanything, those committing or assisting crimes thattransgress humanity’s most fundamental valuesshould be held to a more exacting standard.III. The text of the ATS and the common law

nature of the claim demonstrate that thelaw applies to conduct occurring abroad.The question of whether the ATS encompasses

claims arising abroad is not among the questionspresented here and was not addressed by the courtbelow; there is therefore no call for this Court toreach this question. Nonetheless, because ATSdefendants have on occasion argued that the ATSdoes not extend to claims arising abroad, amicusbriefly demonstrates that this position is unsound.

The text of the ATS contains “no limitations asto . . . the locus of the injury,” Trajano v. Marcos, 978F.2d 493, 499–501 (9th Cir. 1992), in sharp contrastto the first clause of Section 9 of the Judiciary Act of

34

19 E.g., 1 A Modern Law Dictionary Containing thePresent State of the Law in Theory and Practice: With aDefinition of its Terms; and the History of its Rise and Progress(T.E. Tomlin ed., 1797) (unpaginated); Richard Burn & JohnBurn, 1 A New Law Dictionary: Intended for General Use, asWell as for Gentlemen of the Profession 30–31 (1792); CharlesViner, 2 Abridgment of Law and Equity of the Law of England261–62, 265 (2d ed. 1790); Timothy Cunningham, 1 A New AndComplete Law-Dictionary, or, General Abridgment of The Law,tit. “Alien” (3d ed. 1783) (unpaginated); John Cowell, TheInterpreter of Words and Terms, tit. “Alien” (1701)(unpaginated); Giles Jacob, A New Law-Dictionary: Containing

1789, which conferred jurisdiction with ageographical limitation. 1 Stat. at 76–77. Moreimportantly, the plain meaning of every phraseCongress chose demonstrates that the law applies toacts that occurred abroad.

“Any civil action.” The term “any,” and theoriginal use of “all,” indicate the absence ofadditional limitation beyond those expresslydelineated in the text. If Congress sought to excludeclaims that arise abroad, it would have chosen amore narrow formulation.

“[B]y an alien.” This Court has expresslyheld that the term “alien” within the meaning of theATS includes non-citizens living abroad. Rasul v.Bush, 542 U.S. 466, 484 (2004). This was also theunderstanding when the ATS was passed. Theleading dictionaries and commentaries of the perioddefined “alien” by place of birth, without reference tocurrent residence, and described rules that wouldapply when an “alien” entered the country.19 Indeed,

35

the Interpretation and Definition of Words and Terms Used inthe Law (10th ed. 1782) (unpaginated).

if any ambiguity existed, it related to whether “alien”excluded residents. Breedlove v. Nicolet, 32 U.S. 413,431–32 (1833) (holding for purposes of alienagejurisdiction that “[i]f originally aliens, they did notcease to be so, or lose their right to sue in the federalcourt, by a residence in [the U.S.]”).

The plain meaning of “any” claim brought by anon-citizen living abroad includes claims that ariseoutside the United States.

“[F]or a tort only.” The term “tort”necessarily includes torts committed abroad, because“tort[s]” at the time the ATS was passed, as now,were understood to be transitory. The tortfeasorowed an obligation to the victim that could beenforced wherever the tortfeasor was found,regardless of where the tort occurred. See Dennick v.Central Ry. Co., 103 U.S. 11, 18 (1880). A nation “hasa legitimate interest in the orderly resolution ofdisputes among those within its borders.” Filártiga v.Peña-Irala, 630 F.2d 876, 885 (2d Cir. 1980).

A court’s power to adjudicate transitory tortsinvolving claims that arise abroad has beenrecognized since at least 1774. This Court has tracedthe doctrine to Mostyn v. Fabrigas, 1 Cowp. 161 (K.B.1774), among other cases, noting that:

The courts in England have been openin cases of trespass . . . to foreigners

36

20 Taxier v. Sweet, 2 U.S. 81, 84, 85 (S. Ct. Pa. 1766)(affirming jurisdiction over case regarding seizure of ship on thehigh seas, where plaintiff argued transitory actions are triableanywhere); Watts v. Thomas, 5 Ky. (2 Bibb) 458 (1811); Pease v.Burt, 3 Day 485, 1806 WL 202, at *2 (Conn 1806); see alsoBurnham v. Superior Court, 495 U.S. 604, 610–11 (1990)(plurality) (English common-law practice “sometimes allowed‘transitory’ actions, arising out of events outside the country”(citing Mostyn and Cartwright v. Pettus, 22 Eng. Rep. 916 (Ch.1675)); The Federalist No. 82 (Alexander Hamilton) (“Thejudiciary power of every government looks beyond its own localor municipal laws, and in civil cases lays hold of all subjects oflitigation between parties within its jurisdiction, though thecauses of dispute are relative to the laws of the most distantpart of the globe.”).

against foreigners when found inEngland, for trespass committed withinthe realm and out of the realm, orwithin or without the king’s foreigndominions.

McKenna v. Fisk, 42 U.S. 241, 248–49 (1843). Thestate courts regularly applied this doctrine.20 Indeed,Oliver Ellsworth, the author of the Judiciary Act of1789, had himself done so in 1786, as a state judge.Stoddard v. Bird, 1 Kirby 65, 68, 1786 Conn. LEXIS36 at *4 (Conn. 1786) (Ellsworth, J.).

The transitory tort doctrine is a basicassumption of our common law. It was the originalbasis for state court jurisdiction over out-of-statetorts. Filártiga, 630 F.2d at 885. As noted above,Sosa confirmed that the ATS was enacted on theunderstanding that the common law would provide

37

21 Unlike the regulatory statute at issue in Morrison v.Nat'l Austl. Bank Ltd., 130 S. Ct. 2869 (2010), which involvedan exercise of Congress’ jurisdiction to prescribe, here Congressmerely authorized courts to adjudicate claims involving conductthat is universally forbidden.

the cause of action, and that torts in violation of thelaw of nations could already be heard in state court.See supra Sections I.A.2 & I.A.4. Thus, “any. . . tort”encompasses transitory torts. And based on thetransitory tort doctrine, the Courts of Appeals haveheld that the ATS applies to claims arising abroad.Filártiga, 630 F.2d at 885; Exxon Mobil, 654 F.3d at24–25.21

“[C]ommitted in violation of the law ofnations.” At the time the ATS was passed, it wasunderstood that “all . . . trespasses committedagainst the general law of nations, are enquirable,and may be proceeded against, in any nation whereno special exemption can be maintained.” Talbot v.Janson, 3 U.S. (3 Dall.) 133, 159–60 (1795) (Iredell,J.) (rejecting the claim that “the United States haveno right to decide a dispute between the Dutch andthe French, in regard to a capture on the high seas”).

In sum, the ATS applies to “any” suit by a non-citizen — including those living abroad — for claimsthat were well-understood to be actionable whereverthe tortfeasor could be found. The text leaves noquestion that the ATS applies to conduct outside theUnited States.

38CONCLUSION

Whether corporations can be sued under theATS for committing or abetting genocide or otheratrocity is determined by federal common law. Undercenturies-old common-law principles, corporationsare subject to the same tort liability as naturalpersons. Nothing in law or logic warrants thecreation of a new, special immunity for the veryworst kinds of torts.DATED: December 21, 2011

Respectfully submitted,

RICHARD L. HERZCounsel of Record

MARCO B. SIMONSJONATHAN G. KAUFMANEARTHRIGHTS INTERNATIONAL1612 K Street, N.W. Suite 401Washington, DC 20006202-466-5188 (ph)202-466-5189 (fax)

Counsel for amicus curiae